Enforced Starvation: Exploring Individual Criminal Responsibility for State-Induced
Famines
Daniel Butler*
Abstract
Hunger has caused and continues to cause more deaths than have been brought about by
all the epidemics, pandemics, civil and inter-state wars, genocides and natural disasters
humanity has suffered. This article seeks to differentiate between circumstances where
people die from hunger, and where they are killed as a result of the use and manipulation
of food, water supplies and weather patterns as a weapon of extermination. The author
explores and exposes the myths behind famines as the result of natural disasters and
unavoidable external circumstances, and attempts to find a mechanism under international
criminal law by which those who use food as a weapon can be held accountable. The
author illustrates the need for existing international law to address more directly this often
ignored behaviour by use of illuminating case studies, and by addressing the root causes
of famines.
1. Introduction
During 1999, there were reliable reports of the deliberate starvation by Milosevic of the
people of Kosovo, which resulted directly in over 20,000 deaths. Aid was sent, but security
forces prevented United Nations High Commissioner for Refugees convoys from delivering
it.1 Despite the prohibition of this behaviour in international criminal law, the indictment did
not include enforced starvation but focused on acts of physical violence.2
Famines have been at the epicentre of the worst human rights catastrophes in history,
claiming the lives of over 70 million people in the 20th Century,3 yet perhaps have been the
most ignored. From the Ukrainian famines of 1922 and 1932 where over 7 million Ukrainians
were deliberately starved to death,4 to the current situation in North Korea, where it is
estimated over 2.5 million have perished,5 famines have been created, manipulated and
fashioned by governments. Where food supplies are a weapon wielded by authorities against
those seeking to challenge that power, it has become increasingly clear that famine would in
many cases be better termed as enforced mass starvation, as it is more often a result of human
action than environmental disaster.6 What this highlights is whether there is a need to codify
existing law on enforced starvation in order to make it more visible. This article will explore
whether it would be appropriate and necessary to create a new international offence which
recognises that state-adopted policies enforced with the intention that mass starvation ensues,
is criminal behaviour.
*LLB, Durham, currently studying for the LLM in International Criminal Justice and Armed Conflict at the
University of Nottingham. The author would like to thank Dr Israel Butler for his guidance and feedback, and
also Colin Warbrick for his excellent advice and supervision.
1
UNHCR Press Release, 18 January 1999, available at: http://www.unhcr.org/cgibin/texis/vtx/news/opendoc.htm?tbl=NEWS&page=home&id=3ae6b8106c.
2
ICTY, The Prosecutor of the Tribunal, Indictment, IT-02-54, 24 May 1999, at para. 100.
3
Devereux, Famine in the Twentieth Century, (IDS Working Paper 105, 2001) at 1.
4
Dolot, Execution by Hunger: The Hidden Holocaust (New York: W.W. Norton & Company, 1987) at 20.
5
Amnesty International Press Release, available at: http://web.amnesty.org/library/index/engasa240032004.
6
Independent Commission on International Humanitarian Issues, Famine: A Man-Made Disaster, (London: Pan
World Affairs, 1985) at 28.
A. Dispelling the Myth
To establish faminism as a (new) international crime, it is necessary first to displace the
fiction that famines are the inevitable result of unfortunate circumstances such as raging civil
war and natural disasters, the belief of which is perpetuated by events such as ‘Live Aid’ and
‘Band Aid.’7 During the 1980’s in Sudan and Ethiopia, the implementation of the ‘scorched
earth’ policy together with the destruction of livestock and relief being prevented from
reaching the starving,8 resulted in the worst famine in Sudan’s and Ethiopia’s history. Despite
the Ethiopian foreign minister telling a US official that ‘food is a major element in our
strategy against the secessionists,’9 there was very little interest in calling for international
criminal trials for those officials responsible for creating or prolonging the famine. This is yet
another example of the tendency of the international community to focus on crimes that
involve only mass violence,10 which is clearly an arbitrary distinction to make for the victims
of enforced starvations when the result, mass extermination, is often the same. The response
from the developed world to what was in reality a human rights atrocity brought about by
government policy, was characterised by pictures of cracked earth focusing misleadingly on
drought for the reason behind the humanitarian disaster in Ethiopia. This misconception
persists and is false: famines do not merely happen, famines are made and allowed to happen.
Once the connection between human agency and famines has been established by
reference to some of the worst incidences of famine, the search in international criminal law
and international humanitarian law (drawing from the International Criminal Court Statute)
and the case-law from the International Tribunal for the Former Yugoslavia (ICTY) and the
International Tribunal for Rwanda (ICTR)) for a foundation in which to anchor the definition
of a famine crime can begin. Although some faminist11 behaviour is already arguably caught
by existing international criminal law (as will be examined below) existing provisions provide
only patchwork coverage. Famines are not the sole and inevitable consequence of abstracts
such as climate, food shortages or natural disasters, but in some situations are rather brought
about through the intentional or reckless acts of tyrannical leaders through widespread and
systematic human rights violations who should be held accountable as some of the world’s
worst criminals.
B. The Limits of this Article
The focus on individual criminal responsibility in this article is in recognition of the fact that
although most induced famines are only possible as a result of a systematic plan carried out at
every level of the state. It is generally accepted by states and jurists alike that state
7
Bard, ‘The Right to Food’, (1985) 70, Iowa Law Review 279 at 1279.
de Waal, Famine Crimes: The Politics and the Disaster Relief Industry In Africa (Oxford: James Currey, 1997)
at 94.
9
Keller, ‘The Weapon of Food: Drought, War and the Politics of Famine in Ethiopia and Eritrea’, (1992) 30
Journal of African Studies 609 at 620.
10
Morris, ‘Accountability for International Crimes and Serious Violations of Fundamental Human Rights’,
(1996) 59 Law and Contemporary Problems 1 at 1.
11
The term faminist is original to the author and is used to refer to a person who creates famine, or conditions
that lead to famine. Similarly, ‘faminism’ is used to describe famine-inducing behaviour.
8
criminality does not, at present, exist in international law.12 International criminal law can
punish only individuals not abstract entities. There is also significant overlap between the law
of human rights and international criminal law.13 However these two bodies of law are in
reality two different ways of looking at the same problem, and although it may be may be
tempting to look to economic, social and cultural rights (in particular the right to food14) for a
legal basis on which to build the definition of a famine crime, the right to food is considered
by many as nonjusticiable and vague15 and the International Covenant on Economic, Social
and Cultural Rights (ICESCR) is generally criticised as creating only weak and imprecise
legal obligations for states parties.16 Although human rights treaties require states parties to
guarantee rights through, among others, judicial measures, including criminal sanctions,17 this
is of limited use as most famines occur within the boundaries of a single state, and it is very
unlikely that the violating state officials will be put on trial by their own state for carrying out
state policy. For example North Korea is a party to the International Covenant on Civil and
Political Rights (ICCPR) and ICESCR,18 but the leader of North Korea, Kim Jong Il, will not
be prosecuted by his own state for his massive violations of the right to food or the right to
life. Rather it is more realistic to look to the exercise of international criminal law or the ICC.
It is important to emphasise, at the outset however, that behind every famine, there is
not necessarily what could be classed as criminal conduct on behalf of the state. In this sense I
do not intend to address all those acts of states which could be said to contribute to famine.
For example, during the 1990s, the sanctions that the UN Security Council imposed on Iraq,
Liberia, Sudan, Angola and Yugoslavia19 caused massive disruptions in the distribution of
food, and contributed directly, as stated by the UN Committee on Economic, Social and
Cultural Rights, to starvation on a massive scale and famine.20 Nor is it the purpose of this
article to address the economic policies of governments that have negative impacts on food
supplies for people living in other countries. It is recognised by jurists, economists and
historians alike, that there are much deeper roots of famine to be found in unfair trade
practices. For example, the price of agricultural produce in the European Union and United
States has continually been kept artificially low to benefit (typically domestic) consumers and
corporations by subsidising local producers rather than favouring the exports of developing
countries.21 World Bank policy and the Common Agricultural Policy22 have all implemented
programmes that result in ‘dumping’ and ‘cash cropping’, widely recognised as having
12
Harris, Cases and Material on International Law, 6th edn (London: Sweet & Maxwell, 2004) at 504. But see,
generally, Pellet, ‘Can A State Commit A Crime? Definitely, Yes!’, (1999) 10 European Journal of
International Law 425.
13
See Skogly, ‘Crimes Against Humanity – Revisited: Is There A Role for Economic and Social Rights?’,
(2001) 5 International Journal on Human Rights 58.
14
Article 11(2), International Covenant on Economic, Social and Cultural Rights 1966, 999 UNTS 3.
15
See, for example, Eide, ‘Realisation of Social and Economic Rights and the Minimum Threshold Approach’,
(1989) 10 Human Rights Law Journal 35 at 37-8.
16
Abbott et al., ‘The Concept of Legalisation’, (2000) 54 International Organisations 401 at 412. See also
Goodwin-Gill, ‘Obligation of Conduct and Result’, in Alston et al., (eds), The Right To Food (Dordrecht,
Netherlands: Martinus Nijhoff, 1984) 111.
17
General Comment No. 31, 26 May 2004, CCPR/C.Rev.1/Add.13 at para. 18.
18
North Korea ratified the two Covenants in 1981. See the official list of ratifications and reservations, available
at: http://www.ohchr.org/english/countries/ratification/4.htm and
http://www.ohchr.org/english/countries/ratification/3.htm.
19
For detailed analysis of the effect of UN sanctions, see Pilger, The New Rulers of the World (London: Verso
Books, 2003) at 56-70.
20
General Comment No. 8, 12 December 1997, E/C.12/1997/8 at para. 3.
21
Report of the Special Rapporteur on the Right to Food, 24 January 2005, E/CN.4/2005/47 at para. 40.
22
Shepard, ‘The Denial of the Right to Food in Africa’, (1985) 15, California Western International Law
Journal 528 at 528.
disastrous effects on food production in developing nations.23 However discussion of the
legality of this is also beyond the scope of this article.
This article is to focus on the very specific and intentional use of food as a method of
performing massacres, and also where governments implement policies where famine is an
unintended consequence, but once observed, is allowed to continue and actively prolonged.
This, in keeping with existing international criminal law which, (as will be discussed below)
criminalises behaviour on the basis of an intention to commit the offence in question or
reckless indifference thereto.
C. Defining Famine
It is important at this stage to define famine, so as not to confuse it with the plethora of other
situations involving malnutrition. Good examples are Kenya and India,24 where acute food
shortages and extreme hunger are still a considerable problem, however there is no famine.25
In academic literature, the tendency has been over recent years to make the definition of
famine increasingly broad. However, only the most severe forms of malnutrition can be
included in the definition for the purposes of singling out truly criminal behaviour and
distinguishing it from a mere ‘food crisis.’ I have modified the World Food Programme
definition of famine,26 taking into account Amartya Sen’s emphasis on the particularly
virulent nature of famines.27 Such a definition that encapsulates the singularity of famine is
used here. A famine is taken to mean a serious and widespread shortage of food across a
country or region that dangerously affects the health of a significant number of the population
to the extent that there are widespread deaths.
Part 2 will examine the link between human agency in order to establish how
governments may engineer famine. Part 3, 4 and 5 will examine how these situations may fall
within existing definitions or genocide, war crimes and humanitarian law, and crimes against
humanity. Through this examination it will become apparent whether codifying existing
international criminal law is necessary or adequate as a mean to redress faminist behaviour by
governments.
2. Famine and Human Agency
This segment will look briefly at some of worst cases of enforced starvation in an attempt to
demonstrate that famines are unlikely to occur solely as a result of massive crop failures or
drought, but that they do commonly occur as the result of man-made starvation regimes.
There is ample evidence of this when examining for example the weather patterns that affect
neighbouring countries in a similar fashion, but where in one state there is famine, and no
severe shortages of food in the other. The historic but also contemporary use of famine as a
weapon in the Ukraine, Ethiopia and North Korea, provide particularly horrific examples
spanning over a century of the use of hunger by governments against its own people.
23
Cleaver, Food, Famine and the International Crisis, in Reading Capital Politically (Austin: AK Distribution,
2002) at 26.
24
Waal, Famine Crimes: The Politics and the Disaster Relief Industry In Africa (Oxford: James Currey, 1997) at
21.
25
Sen, Development as Freedom (New York: Alfred Knopf, 1999) at 169.
26
The World Food Programme Report on Famine, available at:
http://www.wfp.org/Newsroom/in_depth/Europe/050729_famineasp?section=2.
27
Sen, Poverty and Famines (Oxford: Clarendon Press, 1981) at 40.
A. Ukraine
Stalin is credited with performing the world’s first, meticulously planned, grand-scale
famine.28 This is a perfect example of how leaders can resort to faminism as a weapon when
the idea of physical annihilation is impractical or otherwise undesirable. Stalin’s objective
was to eliminate a social class and political faction, and did so in the realisation that starving a
population was a much cheaper, and a much quieter way to engage in class warfare. All the
areas that suffered famine in the Ukraine contained heavy concentrations of Kulaks and
nationalists who were considered to be a hindrance to Stalin’s plan to resurrect a politically
uniform Russian Empire.29 The main goal of this famine was to eliminate the middle class
and the peasant Ukrainian farmers to force them into collectivisation.30 Faminism was also
used as an effective tool to break up the revival of Ukrainian culture that was occurring under
approval of the communist government in Ukraine. Moscow perceived this as a threat to
Soviet rule and acted to crush this cultural renaissance in a brutal manner. In 1932, Stalin
increased the grain procurement quota for Ukraine by 44%. Not only was this excessive, but
quite impossible to attain, and if enforced, ‘could only lead to starvation of the Ukrainian
people.’31 There is extensive evidence to show that Stalin and his commanders were aware
that this extraordinarily high quota would result in the inability of the Ukrainian people to
feed themselves, as they received constant warnings that the grain quota would lead to death
on an enormous scale,32 but pursued the policies regardless. Soviet law was quite clear that no
grain could be given to feed the peasants until the quota was met.33
The case was not one of necessity. Russia’s grain output was less than usual, however
there was no danger of starvation without the Ukrainian grain. Communist party officials with
the aid of troops and secret police units were used to move against peasants who may have
been hiding grain from the Soviet government. Even worse, an internal passport system was
implemented to restrict movements of Ukrainian peasants so that they could not travel in
search of food.34 Ukrainian grain was collected and stored, guarded by military units and
secret police units while Ukrainians were starving in the immediate area.35 Aid shipments
were offered by the international community and humanitarian organisations, but refused.
The result of these actions was a mass annihilation of its own people to achieve a set of
economic goals, and to destroy the social basis of Ukrainian nationalism. The degree of intent
and whether the famine was something more than mere reckless indifference to the effects of
certain policies will be examined in Part 3.
B. Ethiopia
The Ethiopian famine is an excellent example of how a faminist can take advantage of a
natural disaster to further political objectives. In Botswana, between the years of 1980 and
28
Mace, The Man-Made Famine of 1933 in the Soviet Ukraine: What Happened and Why? (Colorado:
Westview, 1984) at 69.
29
Conquest, The Harvest of Sorrow: Soviet Collectivisation and the Terror-Famine (London: Pimlico, 2002) at
10.
30
Ibid. at 3.
31
Ibid at 222-3.
32
Procyk, Famine in the Soviet Ukraine 1932-1933 (Cambridge: Harvard University Press, 1986) at 120.
33
Mace, supra n.28 at 76.
34
Conquest, supra n. 29 at 230.
35
Dolot, Execution by Hunger: The Hidden Holocaust (New York: Norton, 1987) at 12.
1985 food production dropped by 17%, while in Ethiopia it fell by 11%.36 Kenya’s agriculture
was even more severely affected by the same drought Ethiopia and Botswana suffered.
However in Kenya there was no starvation. Kenya set up a ‘drought response committee’ to
deal with the crisis,37 whereas the Dergue (the military authority in power) manipulated the
situation to starve out their enemies and deliberately prolonged the famine, hiding behind the
shield of the natural disaster.38 In Ethiopia there were 400,000 famine-related deaths in 1984
alone, and over 600,000 in 1985,39 but in Botswana there was no famine and no deaths. The
Ethiopian authorities realised that the drought provided them with an excellent opportunity to
inflict starvation upon insurgent populations.40 The world press displayed the famine in
Ethiopia as due to a failure of the rains in Africa. However it has been pointed out that even
though the Ethiopian government possessed a drought and famine early-warning system, it
took no remedial measures internally and refused offers of foreign assistance.41 The ruling
Dergue exacerbated the consequences of the drought during the mid-1980s with a series of
disastrous policy decisions, driven by a desire to completely eliminate its opponents.42
Government policies such as forced relocation,43 redistribution of land, and confiscation of
grain,44 makes the intention of the Dergue, argues Jonassohn, ‘unambiguously clear’.45 The
forced relocation of over 1.5 million peasants from feeding centres set up in the north to areas
more affected by the drought in the south meant there was even less food and resulted in
widespread starvation and death. The Dergue persisted with these policies to depopulate rebel
strongholds such as Tigre and Wollo so as allow for the extermination of those who
remained.46 The deliberate use of starvation as a military strategy on the battlefield was also
commonplace, but hundreds of thousands of civilians were deliberately affected by the same
measures used to starve militants. Farms were systematically bombed, livestock slaughtered
and on one occasion a convoy of 23 UN trucks carrying 450tons of wheat were intentionally
destroyed.47 Waal concludes that drought and harvest failure did not cause the famine. Nor
does he place emphasis on the economic and agriculture policies of the Dergue. Rather, ‘the
counter-insurgency campaign of the Ethiopian army and air force… [constituting in] major
human rights abuses … lay at the heart of the campaign.’48 Only a most generous
interpretation of the events could lead one to conclude that these were the acts of a
government trying to win an armed conflict against secessionists by any means necessary, but
even if this were the case and the massive loss of civilian life was merely ‘collateral,’ there
are many rules of armed conflict (examined below) that prohibit this kind of activity.
Ethiopian authorities knew the effect their policies and military strategies were having and
ruthlessly used famine as an instrument of extermination.
36
Sen, supra n. 25 at 179.
Campbell, ‘Response to Drought Among Farmers and Herders in Kenya’, (1999) 27 Human Ecology Journal
337 at 401.
38
Shepard, ‘The Denial of the Right to Food in Africa’, (1985) 15 California Western International Law Journal
528 at 535.
39
Keller, ‘The Weapon of Food: Drought, War and the Politics of Famine in Ethiopia and Eritrea’, (1992) 30
Journal of African Studies 609 at 610.
40
Jonassohn and Bjornson, Genocide and Gross Human Rights Violations In Comparative Perspective (London:
Transaction, 1999) at 36.
41
Shepard, supra n. 36 at 530.
42
Keller, supra n. 39 at 620.
43
de Waal, supra n. 24 at 117.
44
Shepard, supra n. 36 at 533.
45
Jonassohn and Bjornson, supra n. 40 at 38.
46
Keller, supra n. 39 at 619.
47
Smith, ‘Ethiopia and the Politics of Famine Relief’, (1987) 145 Middle East Reports 31 at 33.
48
Waal, supra n. 24 at 115.
37
C. North Korea
North and South Korea have suffered the same unfortunate weather patterns yet the
North suffers what has been called the most devastating famines of the 20th century, while the
south remains completely untouched by famine.49 The international community has, until very
recently, ignored the human rights situation in North Korea, which is home to one of the
world’s most repressive governments.50 On 15 December 2005 the UN General Assembly
voted on a series of resolutions addressing the human rights situation in five countries
including North Korea.51 Even so, only a passing reference52 was made to the famine, that
North Korea has been facing for over two decades for the sake of the political survival of Kim
Jong Il. The North Korean famine is historically unique due to the political and ideological
grounds that resulted in a calamitous economic policy.53 Despite the obvious proof that its
policies were fundamentally flawed, the government continued to implement them causing
starvation. At the height of the food shortage, Kim Jong Il introduced the ‘Let’s Eat Two
Meals a Day’ campaign when there was barely enough food, (or even feed and seed for its
production) to cover one meal a day for the whole population.54 It has been clear since the
early 1990’s that North Korea has not had the capacity to feed itself through domestic
production and import capacities, yet it has recently requested that the United Nations halt all
food assistance there.55 Where once this aid would be enough to feed over 600.000 people,
these will now certainly starve. In the past North Korea has also held its own people hostage
by manipulation of food aid from, for example the United States,56 demanding food aid as a
prerequisite to diplomatic relations. North Korea’s policy of collectivisation is fundamentally
flawed, yet it pursues it, causing the starvation of millions and the acute malnutrition of over
half of the population.
The classification of North Korean citizens into various categories of political loyalty
determines their entitlement to food. North Koreans are not free to purchase food, rather they
are divided into three main classes (the ‘core class’ 15%, the ‘wavering’ 58%, and the ‘hostile
class’ 27%).57 Due to acute food shortages those who are perceived as a politically dangerous
receive little or no food and are left to starve, without rations, or the means by which to
procure food. The famine in North Korea continues, and is a result of intentional acts of the
state, based on a desire to stay in power at whatever cost.
D. Defining Faminist Behaviour
From the examples above, a simple definition of what would constitute a faminist in
international criminal law can be formulated.
49
Schloms, The North Korean Famine: Causes and Scale, (Munster: Lit Verlag, 2004) at 92.
Human Rights Watch Press Release, available at:
http://hrw.org/English/docs/2005/04/04/nkorea10410_txt.htm.
51
GA Res. 173, 15 December 2005, A/60/509/Add.3-IV.
52
The resolution expressed the General Assembly’s ‘serious concern over reports of … high infant malnutrition
… and failed … attempts to deliver food aid.’ Ibid. at para. 4.
53
Schloms, supra n. 49 at 92.
54
Ibid. at 101.
55
Brook, ‘By Order of North Korea, U.N. Halts Food Assistance There’, New York Times, January 7 2006,
available at: http://www.nytimes.com/2006/01/07/international/asia/07korea.html.
56
Amnesty International Press Release, supra n. 5.
57
North Korean Freedom, available at: http://www.nkfreedom.org/important_nk_topics.html.
50
A faminist is someone who has the intention to create or sustain conditions that
result in famine and knowingly carries out activities that will induce famine, or
recklessly ignores evidence that these policies will or are having the effect of
starving a significant number of people.
The mens rea for a famine crime therefore is a specific intention to manipulate food and
water supplies as a device for the annihilation of a significant number of persons. The lesser
offence of the pursuance of policies that are known to be inducing or sustaining famine is
characterised by recklessness. Where it is beyond a state’s capabilities to prevent or mitigate
famine, there can be no criminal sanction. Although Sen places emphasis on the wilful
blindness of states to its starving population as a cause of famine,58 mere indifference is not
enough to warrant criminal sanction, however appalling the result.
The following sections will examine how adequately existing international law could
deal with the faminist behaviour outlined in the examples above.
3. Famine and the Law of Genocide
Genocide is perceived as the most atrocious, barbaric and heinous of all international
crimes,59 so fitting the actus reus for faminism into the law of genocide has significant value.
In addition the prohibition of genocide is also seen as being part of customary international
law60 and is generally accepted as having acquired jus cogens status and erga omnes61
application. As seen above, the law of genocide could certainly include cases of enforced
starvation in terms of such widespread extermination. The definition of genocide in the
Genocide Convention is definitive in that it enjoys the status of custom, therefore binding
both parties and non-parties, and also appears in the ICTY,62 ICTR63 and ICC64 statutes.
An act of genocide as defined in Article 2 of the Genocide Convention is any of the acts
listed below committed with the intention:
[T]o destroy, in whole or in part, a national, ethnical, racial or religious group…:
(a) killing members of the group
(b) causing serious bodily harm or mental harm to members of the group
(c) deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part
(d) imposing measures intended to prevent births within the group
(e) forcibly transferring children of the group to another group.
The mass enforced starvation discussed in Part 2 would fit best most comfortably into
category c). The Preparatory Commission for the ICC has recognised that ‘the term conditions
of life may include…deliberate deprivation of resources indispensable for survival, such as
58
Sen, supra n. 25 at 175, argues ‘Famines are extremely easy to prevent…they require a severe indifference on
the part of the government.’
59
Tomuschat, Human Rights: Between Idealism and Realism (Oxford: Oxford University Press, 2003) at 276.
60
For example, The Reservations Case, Advisory Opinion, ICJ Reports 1951, 32.
61
Barcelona Traction Case (Belgium v. Spain), ICJ Reports 1970, 3.
62
Article 4(2), Statute of the Criminal Tribunal for the Former Yugoslavia, (1993) 32 ILM 1159.
63
Article 6, Statute of the Criminal Tribunal for Rwanda, (1994) 33 ILM 1602.
64
Article 2(2), Rome Statute, (1998) A/CONF.183/9.
food.’65 The commentary to the first Protocol Additional to the Geneva Conventions mentions
the use of starvation as a tool in committing genocide: ‘An action aimed at causing starvation
could…be a crime of genocide if it were undertaken with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, according to the terms of the Genocide
Convention.’66 Jurists and commentators67 such as Robinson, a leading expert on the
Genocide Convention, states that withholding or placing a group on an inadequate diet could
lead to a commission of genocide.68 Case law of the ICTR also places emphasis on methods
that lead to the slow death of victims, using the deprivation of food as a specific example.69
It is clear that faminist behaviour is more than adequately provided for in the definition
of genocide if enforced starvation leads to the destruction of a particular group in whole or in
part. However, the requisite mental element is very different for the crime of genocide from
other international crimes, as it requires a specific intent, i.e. more than mere knowledge of
the eventual outcome of the acts (or planned acts) is required.70 Although the ICTR seems to
have reduced the mens rea requirement for genocide by stating that the perpetrator ‘knew or
should have known that the act committed would destroy, in whole or part, a group’,71 this
introduces the idea of reckless genocide and is at odds not only with the current understanding
of the mens rea requirement, but also with the ‘clearly intended result test’ set out in other
parts of the judgment,72 and is therefore unlikely to become the accepted test.73 The standard,
accepted test is the requirement of dolus specialis, a very specific intent to destroy a group in
whole or in part.
The Jelisic case best summarises the mens rea requirement: ‘the special intent which
characterises genocide supposes that the alleged perpetrator of the crime selects his victims
because they are part of a group which he is seeking to destroy’.74 The attack must therefore
be on account of their ethnic, racial, or religious characteristics.75 Commentators have
pointed out that the main weakness of the definition of genocide is that the groups are very
limited76 in that the destruction of political groups,77 economic groups, professional groups,78
and so-called ‘cultural groups’79 are not included. The tribunals have also been extremely
65
Report of the Preparatory Commission for the ICC, Part 2, 7. PCNICC/2000/1/Add.2, available at:
http://daccessdds.un.org/doc/UNDOC/GEN/N00/724/27/PDF/N0072427.pdf?OpenElement.
66
ICRC Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, available at:
http://www.icrc.org/ihl.nsf/COM/470-750069?OpenDocument.
67
See, for example, Jonassohn and Bjornson, supra n.40 at 25.
68
Robinson, The Genocide Convention: A Commentary (New York: Institute of Jewish Affairs, 1960) at 63-4.
69
Prosecutor v Akayesu, ICTR-96-4-T, 2 September 1998, at paras 505-506; and Kayishema and Ruzindana
Judgement, ICTR-95-1-A, Appeals Chamber, 1 June 2001, paras 114-117.
70
Triffterer, ‘Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such’, (2001) 14 Leiden
Journal of International Law 399 at 400.
71
Akayesu, supra n. 69, at para. 520.
72
Ibid. at paras 517-9.
73
Akhavan, ‘The Crime of Genocide in the ICTR Jurisprudence’, (2005) 3 Journal of International Criminal
Justice 989 at 993.
74
The Prosecutor v Goran Jelisic IT-95-10-T 14 December 1999, at para. 67.
75
Tournaye, ‘Genocidal Intent Before the ICTY’, (2003) 52 International and Comparative Law Quarterly 447
at 447.
76
For example, see Bassiouni, ‘Searching for Peace and Accountability’ (1996) 59 Law and Contemporary
Problems 9 at 15.
77
Shaw, International Law 5th edn (Cambridge: Cambridge University Press, 2003) at 263.
78
Ratner and Abrams, Accountability For Human Rights Atrocities in International Law: Beyond the Nuremberg
Legacy (Oxford: Oxford University Press, 2001) at 147.
79
Schabas, ‘Problems of International Codification – Were the Atrocities in Cambodia and Kosovo Genocide?’,
(2000-2001) 35 New England Law Review 287 at 291.
strict in their interpretations of who falls within these groups.80 Indeed the ICC Statute itself
specifically provides for a very strict interpretation of the crime.81 Not only has this been the
judicial attitude, but also, on proposals to enlarge the definition of genocide to include
political and economic groups there was tremendous resistance in the General Assembly
against to what would have been tampering with the ‘authoritative definition…which was
widely accepted by States.’82 This extremely limited set of groups protected by the law of
genocide greatly diminishes its effectiveness as a means of punishing faminism, and would
allow perhaps result in all three of the faminists mentioned evading responsibility.
Although historians Dolot and Mace83 advocate in the strongest of terms the case that
genocide was committed against the Ukrainian people by Stalin,84 other historians, and it
would seem the majority of jurists also, are generally much more cautious in their approach.
They tend to use the terms such as mass extermination in place of genocide, in recognition of
the fact that the famine was indeed economically and politically motivated to break up the
sense of Ukrainian nationalism. For example, Jonassohn, though strongly condemning the
acts of Stalin, is uncomfortable using the word ‘genocide’ to describe the famine since the
intent of Stalin to destroy the Ukrainian nation is not apparent to him.85 Indeed, as the Kulaks
were defined by their economic status, the use of famine as a weapon against them would not
constitute genocide. Had Stalin’s intention been to destroy the Ukrainian population as a
national group, this clearly would have constituted genocide, however, there was no desire by
Stalin to starve Ukrainians because of their nationality per se, but rather to force Ukrainians
into collectivisation. The Ukrainian famine therefore resists characterisation as genocide.
There is even less evidence to suggest that the ongoing North Korean famine constitutes
genocide. Although there is a general consensus among academics86 and UN bodies87 that
auto-genocide (the commission of genocide against a group of which the génocidaire is
himself a member) falls within the law of genocide, there is little evidence that Kim Jong Il
desires to exterminate North Korean citizens on account of their nationality or status as
members of any of the other protected groups. The targeted North Koreans are essentially
political groups, which as stressed above, are not protected.
When the Dergue targeted inhabitants of Tigray, Wollo88 and Eritrea,89 some
commentators have been keen to point out that as the population is comprised of distinct
racial and religious groups, that this may have been a genocide. However it is unclear whether
there was a specific intent to destroy these particular religious and ethnic groups because of
their religion or ethnicity, or simply because it was part of the military campaign. Waal
80
See, for example, the case of Prosecutor v Rutaganda ICTR 96-3-T, 6 December 1999 at para. 56, ‘It is clear
that certain groups such as political groups and economic groups have been excluded from the protected groups’.
81
Article 22(32), ICC Statute provides, ‘The definition of a crime shall be strictly construed and shall not be
extended by analogy’. [Emphasis added].
82
Report of the Ad Hoc Committee on the Establishment of an International Criminal Court. A/50/22 (1995).
83
Dolot, Who Killed Them and Why? The Famine of 1932-1933 in Ukraine (Cambridge: Harvard University,
1984) at 110.
84
Supra n. 28 at 37, ‘The famine was a final solution on the most pressing nationality problem in the Soviet
Union…which certainly constitutes an act of genocide’.
85
Chalk and Jonassohn, ‘Conceptualisations of Genocide and Ethnocide’, in Serbyn (ed.), Famine in the Ukraine
1932-1933 (Edmonton: Canadian Institute of Ukrainian Studies, 1986) at 10.
86
See for example, Luftglass, ‘Crossroads in Cambodia’, 2003-2004) 90 Virginia Law Review 893 at 903;
Schabas, ‘Sentencing by International Tribunals: A Human Rights Approach’ (1997) 7 Duke Journal of
Comparative and International Law 461 at 491; and Rothenberg, ‘Let Justice Judge: Genocide as a Living
Concept’, (2002) 24 Human Rights Quarterly 924 at 949.
87
E/CN.4/SR.1510 (1979).
88
Waal, supra n. 24 at 112.
89
Keller, supra n. 39 at 615.
concludes that the main purpose of the enforced starvation of these regions was the latter,90
and not because of any intention to ethnically cleanse the regions by extermination and
imposition of conditions of life that lead eventually to starvation.
It has been demonstrated that the borders of genocide with regards to its dolus specialis
requirement are much too rigid and restrictive to include many, if not most, acts of faminism.
There are wide loopholes which permit many groups to be exterminated under the excuse that
there are, for example, extreme political circumstances, and, for this reason make it unsuitable
for dealing with famine crimes as defined above.
4. Faminism as a War Crime and a Violation of International Humanitarian Law
International law has been developing in the area of the regulation of armed conflict since the
middle of the nineteenth century,91 to the point where now the rules of warfare are embodied
in a number of sophisticated and extensive international instruments, many of which are
representative of customary international law.92 Various acts of enforced mass starvation as
outlined in Part 2 are certainly contained within the ambit of international humanitarian law.
This however does not necessarily make humanitarian law the ideal vehicle for capturing
famine crimes.
Hunger and food supplies are perhaps the oldest, cheapest low-technology weapon in
existence. History provides countless examples of where starvation has been used to force
fortified places into surrender and other military tactics based on the human need for food and
water in order to win battles and wars at any cost.93 Even as recently as the current conflict in
Iraq, the Special Rapporteur on the right to food, Jean Zielger, has said that, ‘coalition
occupying forces are using hunger and deprivation of water as a weapon of war against the
civilian population’.94 Historically, according to the Lieber Code, an authoritative document
at its time, this kind of activity is expressly permitted.95 Article 17 provides, ‘war is not
carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so
that it leads to the speedier subjection of the enemy.’96 Acts that were directed at starving
civilians were perceived, until relatively recently, as a legitimate tool, of waging what has
come to be known as, ‘total war’; victory at any cost, by any means.97 The Von Leeb case,
decided in 1950 by the Nuremberg Tribunal, stated that, ‘commanders may lawfully lay siege
to a place controlled by the enemy…to cause its surrender. The cutting off of every source of
sustenance…to reduce it by starvation…is deemed legitimate.’98
90
Waal, supra n. 24 at 115, ‘The principal cause of the famine was the counter-insurgency campaign of the
Ethiopian army.’
91
For example, Henry Dunant’s seminal work that lead to the adoption of the 1864 Geneva Conventions and the
Lieber Code of 1863.
92
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226.
93
Allen, ‘Civilian Starvation and Relief During Armed Conflict: The Modern Humanitarian Law’, (1989) 19
Georgia Journal Of International and Comparative Law 1 at 4-5, states ‘Regrettably, the practice of starvation
of civilians…has…been a part of warfare since time immemorial.’
94
‘US Troops Starve Iraqi Citizens’, BBC Online News, 15 October 2005.
95
Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 3rd edn (Cambridge:
Cambridge University Press, 2004) at 10.
96
Instructions for the Government of Armies of the United States in the Field (Lieber Code), 24 April 1863,
available at: http://www.icrc.org/ihl.nsf/0/a25aa5871a04919bc12563cd002d65c5?OpenDocument.
97
Jonassohn and Bjornson, supra n. 40 at 29.
98
US v Von Leeb, 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council
Law No. 10, (1950) at 563.
The modern approach has tipped the balance in favour of humanitarian considerations
over that of military necessity,99 and starvation of civilian populations as a method of warfare
is prohibited; the waging of total war is no longer acceptable. The Geneva Conventions of
1949 were the first instruments of international humanitarian law to move closer to an express
prohibition on civilian starvation. According to Article 23 of Geneva Convention IV, there is
an obligation to let ‘essential foodstuff’ through battle lines if intended for ‘children under
fifteen and expectant mothers.’ However, there is a potentially large loophole in the
protection accorded to children and pregnant women. Article 23 lays out the significant
qualifications in paragraphs a), b) and c). The obligation is conditioned on there being no
serious reason for suspecting,
a) that the consignments may be diverted from their destination,
b) that the control may not be effective, or
c) that a definite advantage may accrue to the military efforts or economy of the
enemy through the substitution of the…consignments for goods which would be
provided or produced by the enemy or through the release of such material,
service or facilities as would otherwise be required for the production of such
goods.
Allen has pointedly stated that the exceptions ‘swallow the rules’100 and Mudge argues that
Article 23 represents nothing more than a ‘clearly worded moral obligation.’101 However, in
occupied territories, there exists greater protection for civilians. Under Article 55 of Geneva
Convention IV, the occupying force ‘to the fullest extent of the means available’ has a duty
toward the whole civilian population, not only those expecting or children, to provide foodstuffs if it is ‘inadequately supplied.’ Indeed this makes practical sense as there would be
little, if any, military necessity in starving a population already under occupied control.
Although there appears to be an escape route for occupying forces in that it could be claimed
that they do not have the ‘available means’ to provide for the civilian population under
occupation, the commentary to the Geneva Conventions expresses in the strongest terms that
nevertheless there exists a duty to ensure an adequate food supply by using ‘all the means at
their disposal.’102 Even stronger protection appears to be afforded by Article 54 of Additional
Protocol 1 to the Geneva Conventions, which provides that,
1. Starvation of civilians as a method of warfare is prohibited.
2. It is prohibited to attack, destroy, remove or render useless objects
indispensable to the survival of the civilian population, such as foodstuff,
agricultural areas for the production of foodstuffs, crops, livestock…for the
specific purpose of denying them for their sustenance value to the civilian
population or to the adverse Party, whatever their motive, whether in order to
starve out civilians…or any other motive.
Commentators have called Additional Protocol I a ‘major accomplishment…that improves the
situation [of civilians] dramatically’,103 and one that fundamentally changes the position of
99
Shaw, supra n. 77 at 1065.
Allen, supra n. 93 at 39.
101
Mudge, ‘Starvation as a Mean of Warfare’, (1969-1970) 4 International Lawyer 228 at 253.
102
International Committee of the Red Cross Official Commentary to Geneva Convention IV, para. 310,
available at: http://www.icrc.org/ihl.nsf/COM/380-600062?OpenDocument.
103
Aldrich, ‘Progressive Development of the Laws of War: A Reply to the Criticism of the 1977 Geneva
Protocol Commentary’, (1985-1986) 26 Virginia Journal of International Law 693 at 695-6.
100
the law dealing with tactics available to a besieging force, and makes it absolutely clear that
destroying foodstuffs necessary for the survival of civilians is strictly forbidden.104 However,
what Article 54 gives with one hand, the ICRC Commentary to the Protocol appears to take
away with the other. It seems to permit indiscriminate interference with civilian provisions if
humanitarian assistance is provided.105 By reference to this alone, one would be led to believe
that even if a blockade were enforced that would induce the starvation of a civilian
population, humanitarian assistance would have to be provided to mitigate the effects.
However, reference to Article 70 of Additional Protocol I makes relief efforts for civilians
exposed to starvation by a blockade ‘subject to the agreement of the Parties concerned.’ The
Commentary asserts that these provisions were in place in recognition of the need to protect
national sovereignty,106 and that the parties involved are by no means entitled to refuse such
an agreement arbitrarily or without good reason.107 Notwithstanding what appear to be
significant inroads into the prohibition of withholding humanitarian aid from civilians under a
blockade, the activities of the Dergue in Ethiopia such as the systematic bombing of farms
and slaughtering livestock do not fit into these loopholes and remain strictly prohibited by
humanitarian law (had these events occurred during an international armed conflict).
As most famines occur within a state’s own borders, Additional Protocol II to the
Geneva Conventions is of greater relevance to this article, as it prescribes rules that govern
internal armed conflicts (Article 1(1)).108 Article 14 of Additional Protocol II is very similar
to Article 54 of Protocol I in that it prohibits the destruction of foodstuffs and agricultural
lands essential for the survival of civilian populations, as is the commentary, which asserts
that no measure of military necessity justifies the starvation of civilians.109 However, as in
Additional Protocol I, Article 18 of Additional Protocol II makes the duty to provide
humanitarian aid ‘subject to the consent of the High Contracting Parties’ involved. This
makes a nonsense of the provision; had an armed conflict erupted in the Russian Empire
between the Russians and Ukrainians during the imposed famine, would Stalin have
consented to humanitarian relief frustrating his very plans to starve the Ukrainians? Indeed as
stated above, Stalin refused foreign aid into Ukraine. Despite this, the 1977 Protocols still
provide for significant protection, if not a complete ban on the starvation of civilians.
Cassese asserts that attacks on civilian food supplies are prohibited by customary
international law.110 However, the inexactitudes of custom cannot be underestimated,
especially given the lack of state practice in this area.111 Despite this however, developing
custom has extended many of the protections of law previously only applicable to armed
conflicts of an internal nature.112 The case law of the international tribunals has gradually
eroded the rule that necessitates such a conflict.113 The seminal Tadic114 case and Celebici115
104
Dinstein, ‘Siege Warfare and the Starvation of Civilians’ in Delissen and Tanja (eds), Humanitarian Law of
Armed Conflict Challenges Ahead (Dordrecht, Neth, Boston: Nijhoff, 1991) at 148-50.
105
International Committee of the Red Cross Official Commentary to Protocol I at para. 2095. Available at:
http://www.icrc.org/ihl.nsf/COM/470-750069?OpenDocument.
106
Ibid. at para. 2805.
107
Ibid.
108
Common Article 3 also prescribes an irreducible minimum standard of treatment for civilians and hors de
combat in internal armed conflicts. This is discussed below.
109
International Committee of the Red Cross Official Commentary to Protocol II, at para. 4795, available at:
http://www.icrc.org/ihl.nsf/COM/470-750001?OpenDocument.
110
Cassese, ‘The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary
International Law’, (1984) 3, UCLA Pacific Basin Law Journal 55 at 91.
111
Meron, ‘International Criminalisation of Internal Atrocities’, (1995) 89 American Journal of International
Law 554 at 555.
112
Ibid. at 558.
113
Than and Shorts, International Criminal Law and Human Rights (London: Sweet and Maxwell, 2003) at 119.
114
Prosecutor v Tadic, Appeal on Jurisdiction, IT-94-1-AR72, 2 October 1995, at para. 129.
decision are prime examples of how the ICTY has expanded international criminal
responsibility and jurisdiction. In Celebici it was stated that, ‘as a matter of [custom],
breaches of international humanitarian law committed in internal conflicts…could also attract
individual criminal responsibility.’116 These developments are reflected in the ICC Statute,
which although only specifically criminalises the deliberate starvation of civilians117 in times
of international armed conflict,118 does criminalise serious violations of Article 3 common to
all four of the Geneva Conventions in Article 8(2)(c), which does apply in times of internal
armed conflict. Although the rights contained therein are much less specific than those
contained in Additional Protocol II, common Article 3 has the advantage of being
representative of customary international law119 so binds all states, and there is no doubt that
mass enforced starvation would fit into common Article 3. This innovation is crucial for
punishing faminism. However, this body of law with its requirement of an armed conflict
would still only cover one of the three famines mentioned, that imposed by the Dergue.
The current extensive protection available to civilians from the use of food as a weapon
in times of armed conflict seems to be paradoxical vis-à-vis the protection afforded where
there is no armed conflict. An important question is why do citizens in times of peace not
seem to enjoy as strong protection from enforced hunger as civilians are during an armed
conflict? Indeed, it seems to make no logical sense that people would appear to have even
more enforceable rights during a time where it is expected that civil liberties and rights are to
be compromised in the name of achieving military goals than in peace time. The requirement
of a nexus of armed conflict limits greatly the usefulness of the vast body of humanitarian law
in dealing with most incidences of faminism.
5. Famines as Crimes Against Humanity
Crimes against humanity have evolved considerably since the one article definition in
the Nuremberg Charter,120 to the extensive Article 7 definition in the ICC Statute. Some
commentators have regarded the concept and parameters of crimes against humanity as
‘notoriously elusive’121 and over-flexible, and so falling foul of the nullum crimen sine lege
rule. Indeed there is much scholarly debate as to what the precise required elements for the
commission of a crime against humanity actually are.122 However it is this very broadness and
flexibility that some consider to be an infirmity,123 which may make it more accommodating
to capturing faminist behaviour.
This section will examine how the existing body of law on crimes against humanity
115
Prosecutor v Delalic IT-96-21-A, 20 February, 2001.
Ibid. at para. 160.
117
Article 8(2)(b)(xxv), ICC Statute, provides that ‘[i]ntentionally using starvation of civilians as a method of
warfare by depriving them of objects indispensable to their survival’ is a war crime.
118
Article 8(2)(b), ICC Statute.
119
Than and Shorts, supra n. 112 at 120.
120
Article 6(c), Nuremberg Charter defines crimes against humanity as, ‘Namely, murder, extermination,
enslavement, deportation, and other inhumane acts committed against any civilian population, before or during
the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime
within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where
perpetrated.’
121
McAuliffe deGuzman, ‘The Road from Rome: The Developing Law of Crimes Against Humanity’, (2002) 22
Human Rights Quarterly 335 at 336.
122
See, for example, Robinson, ‘Defining Crimes Against Humanity at the Rome Conference’, (1999) 93
American Journal Of International Law 43 at 43.
123
Bassiouni, Crimes Against Humanity in International Criminal Law (The Hague: Kluwer Law International,
1992) at 479.
116
prohibits faminist behaviour. Reference will be made to the ICC Statute, which is considered
by jurists and the international community to be the definitive source of crimes against
humanity, as the culmination of many years of state practice and an accurate representation of
customary international law.124 It also has the advantage of perceived legitimacy as the
product of multilateral negotiations between 160 states,125 whereas the Yugoslavia and
Rwanda Tribunals were often criticised for being illegitimate and having no basis in law as a
creature of UN Security Council, which was accused of acting in violation of the rule
delegatus non potest delegare.126 Notwithstanding the need for compromise to account for the
tension between maximalist and minimalist approaches during the negotiations in Rome, the
ICC Statute significantly increases the definition of crimes against humanity contained in the
ICTY Statute. However, reference to the ICC Statute is limited by the fact that currently no
case law exists that interprets these specific provisions. Conversely, the ICTY and ICTR have
a significant body of case law that although was taken into account during the creation of the
ICC Statute in Rome, is still important to discuss in the analysis.
The Yugoslavia and Rwanda Tribunals and the ICC all offer distinct definitions of
crimes against humanity in their respective statutes,127 however the similarities are greater
than the differences. Article 7(1) of the ICC Statute provides that, ‘[f]or the purpose of this
statute, ‘crimes against humanity’ means any of the following acts when committed as part of
a wide spread or systematic attack directed against the civilian population, with knowledge of
the attack.’ In order to adequately cover the actus reus and mens rea requirements, the
elements essential for analysis are as followed: when the crimes can be committed (i.e.
discussion of the absence in the ICC Statute of a nexus to war), whether there exists a
requirement of a discriminatory motive, the meaning of ‘widespread or systematic,’ and
finally the knowledge of the attack, or mens rea requirement.
The requirement of a nexus to an armed conflict contained in Article 5 of the ICTY
Statute represents a significant obstacle to rooting famine crimes within the law of crimes
against humanity as was seen in the analysis of humanitarian law, which would not have
applied to either the Ukrainian famine or the North Korean famine as having taken place in
peace-time. Despite a small minority of delegates (who eventually acceded to the majority’s
view128) arguing that crimes against humanity could not be committed in peace time,129 it is
clear that customary law has developed in such a way that an armed conflict (whether
international or internal130) is not required.131 In the ICTR Statute, the link to an armed
conflict does not appear at all,132 nor does it appear in the ICC Statute.133 The International
Law Commission in its authoritative commentary to the 1996 Draft Code of Crimes stated
that, ‘the definition of crimes against humanity…does not include the requirement that an act
was committed in time of war.’134 The case law of the ICTY reflects this position despite
provisions in its statute to the opposite effect. In Tadic it was expressly observed that the
requirement is not supported by other international instruments or customary law, and
124
Ratner and Abrams, supra n. 78 at 50.
However it should be noted that the Rome Statute is a treaty, so only those state parties are bound by it.
However the treaty provisions which represents customary international law are of course binding on all states.
126
Chesterman, ‘An Altogether Different Order: Defining the Elements of Crimes Against Humanity’, (19992000) 10 Duke Journal of Comparative and International Law 307 at 338.
127
Article 5, ICTY Statute; Article 3, ICTR Statute; and Article 7, ICC Statute.
128
Ratner and Abrams, supra n. 78 at 56.
129
Kirsch and Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’,
(1999) 93 American Journal Of International Law 1 at 7.
130
Skogly, supra n. 13 at 65.
131
Than and Shorts, supra n. 113 at 90.
132
Article 3, ICTR Statute.
133
Article 7, ICC Statute.
134
Report of the ILC on the work of its 48th session, A/51/10 (1996) at 48 at para. 6.
125
stressed the requirement was merely jurisdictional, and not a substantive element of the
crime.135 This development in the law is essential as many famines are committed by
governments against their own populations in peacetime. The ICC can now potentially
respond effectively to such atrocities committed in peacetime (as in the Ukraine and North
Korea) and punish what would previously have been a domestic crime and not a crime against
humanity.
Fortunately neither the ICC Statute nor the ICTR Statute require a discriminatory
motive on ‘national, political, ethnic, racial or religious grounds.’ This would be fatal to, for
example, the case against Stalin who was arguably discriminating against the Kulaks because
of their economic status. Fortunately, neither the ICTY Statute nor the ICC Statute require
that the crime be committed with a discriminatory motive. Furthermore, it was stated by the
ICTY in Tadic that no other relevant international instruments supported the requirement of a
discriminatory motive.136 The removal of this criterion avoids the imposition of an
unnecessary and onerous task on the prosecution137 and further closes the net around
faminists, as yet more behaviour qualifies as violations of international criminal law.
A. The Actus Reus
The two actus reus requirements can be easily identified; firstly, the perpetrator must have
committed, through his actions, one of the specific offences contained in Article 7(1)(a)-(k) of
the ICC Statute, and secondly, the act must be committed as part of a widespread or
systematic attack directed against the civilian population.138 The term ‘widespread and
systematic’, although not mentioned in the ICTY Statute, has, as pointed out by Fenrick,
‘always been regarded as an element of the offence.’139 As such it was necessarily included in
the ICTR Statute and the ICC Statute. The term warrants explanation as it was the most
controversial and hotly contested issue in the negotiations,140 and its precise meaning is far
from a settled matter. The Akayesu decision provides perhaps the most often cited definition
of the term: ‘The concept of ‘widespread’ may be defined as massive, frequent, large scale
action, carried out collectively with considerable seriousness and directed against a
multiplicity of victims. The concept of ‘systematic’ may be defined as thoroughly organised
and following a regular pattern on the basis of a common policy involving substantial public
or private resources.’141 ‘Widespread’142 refers to the number of victims, and ‘systematic’ to
the existence of a policy or plan.143 The ‘widespread’ criterion poses little problems for acts of
faminism, as famines by definition are widespread and as defined above, a faminist must, by
his acts, impose starvation on a significant number of people. Potential problems arise,
however, when examining the other criteria required for the commission of a crime against
humanity.
135
Prosecutor v Tadic IT-94-1-A, 15 July 1999, at para. 249.
Prosecutor v Tadic IT-94-1-T, 7 May 1997, at paras 650-2.
137
Robinson, supra n. 122 at 46.
138
McAuliffe deGuzman, supra n. 120 at 337.
139
Fenrick, ‘Should Crimes Against Humanity Replace War Crimes?’, (1999) 37 Columbia Journal of
Transnational Law 767 at 777.
140
Robinson, supra n.122 at 47.
141
Akayesu, supra n. 69 at para. 579.
142
By definition all famines must be ‘widespread,’ and as the commission of a crime against humanity must be
either widespread or systematic, the criterion of ‘systematic’ will not be analysed in detail.
143
Chesterman, supra n. 125 at 314.
136
The International Law Commission’s Draft Codes’ definition,144 Article 3 of the ICTR
Statute and ICTY decisions145 clearly state that the test is in fact disjunctive, (i.e. that the
attack has to only be either systematic or widespread), however, the question as to whether
the test should be disjunctive or conjunctive (‘widespread and systematic’) was the subject of
much debate at the Rome conference.146 The main concern was that the disjunctive definition
would be over-inclusive and would turn the commission of a wave of widespread but
unrelated crimes into crimes against humanity, thus omitting what has been called ‘the
essential characteristic of crimes against humanity’:147 the existence of a policy or plan. The
view of the majority of states was that a conjunctive test would be too restrictive148 as this
would mean the prosecutor would have to establish the ‘systematic’ criterion and in addition
meet the very high threshold of a widespread attack.149 Although, as discussed above,
establishing the ‘widespread’ criterion is not difficult in cases of enforced famines, the
compromise that was reached could potentially effect the criminalisation of certain cases of
faminism.
The deadlock was finally broken with the adoption of a conjunctive test of a
‘widespread or systematic attack,’ but ‘attack’ is defined in Article 7(2)(a) of the ICC Statute
as ‘a course of conduct involving the multiple commission of acts referred to in paragraph 1
against any civilian population, pursuant to or furtherance of a State or organisational policy
to commit such attack.’ The task of the prosecutor therefore is to first show that the attacks
were widespread, and then that these attacks were connected by a ‘policy’ element. The
danger with introducing this ‘policy’ element is that it may be interpreted as introducing a
mens rea element into the actus reus elements. This of course could potentially exclude
recklessly committed famines. If it were to be said that famine crimes must be part of a
deliberate plan by the state to exterminate citizens, it would make little sense to say that a
government has recklessly implemented a policy calculated to annihilate citizens through
famine. Guzman however asserts that this would not be the case as ‘the policy requirement
should be viewed as a jurisdictional element with no bearing on the mens rea of the
perpetrator.’150 If this is the case, which it most likely is, then recklessly committed famines
still fall within the ambit of crimes against humanity.
The existence of a ‘policy’ is considered to be a very broad term and a criterion that is
much easier to satisfy than the high threshold test of what constitutes a ‘systematic’ attack.151
This is a logical conclusion to draw as it would have been contrary to the intention of the
majority of states who vehemently opposed requiring widespread and systematic to include
the requirement of a ‘policy’ as a co-requisite to the widespread criterion if it had the same
meaning as ‘systematic.’ There is no doubt that most induced famines would fail to meet the
even more stringent ‘systematic’ criteria.152
The most appropriate offence into which to fit famine crimes is perhaps that of
extermination, defined in Article 7(2)(b) of the ICC Statute as, ‘the intentional infliction of
144
ICL Report, supra n. 134 at 47, at para. 3.
Tadic, supra n.136 at para. 653.
146
McAuliffe deGuzman, supra n. 121 at 374.
147
Bassiouni, supra n. 123 at 244.
148
Hwang, ‘Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court’, (1999)
22 Fordham International Law Journal 457 at 495.
149
Akayesu, supra n. 69 at para. 581.
150
McAuliffe deGuzman, supra n. 121 at 375.
151
Than and Shorts, supra n. 113 at 92-3. See also Ratner and Abrams, supra n. 78 at 60.
152
In case of Prosecutor v Blaskic ICTR-95-14, 3 March 2000, at para. 203, a test was set out in order to
determine whether the acts are systematic in nature. The main elements are the existence of a political objective
to weaken a community formulated by high-level authorities, and the perpetration of a criminal act on a large
scale. The three histories discussed clearly fall within these criteria.
145
conditions of life, inter alia the deprivation of access to food and medicine, calculated to
bring about the destruction of the population.’ This language is borrowed form the Genocide
Convention. However the offence does not suffer from the same prohibitively high mens rea
requirement as the crime of genocide. The ICTY distinguishes extermination from genocide
by the fact that the targeted population need not belong to any of the protected groups, and
that it also covers situations ‘where some members of the group are killed while others are
spared.’153 As for the number of victims required for an act or series of acts to be considered
‘extermination’, the ICTY held that the offence ‘generally involves a large number of
victims.’154 It can also be committed by acts or omissions,155 particularly useful for cases of
recklessly induced famines and where a government observes a famine taking place, and
adopts it for their own purposes by doing nothing to alleviate or mitigate the effects.
The actus reus elements of famine crimes are more than adequately accommodated for
within crimes against humanity. However the mens rea requirement is perhaps more
problematic especially in regard to fitting in recklessly induced famines.
B. The Mens Rea
Article 7(1) of the Rome Statute provides that the perpetrator ‘must have knowledge of the
attack’. Article 7(1) of the ICTY Statute ascribes responsibility to those who ‘planned,
instigated, ordered committed or otherwise aided and abetted in the planning, preparation or
execution of a crime.’ This catches every level of state authority that perpetrates famine
crimes, from the head of state who plans, to the soldier on the ground who carries out the
orders. As defined above, faminism must be carried out ‘knowingly’ by the perpetrator,
placing the offender well within the mens rea standard. For intentionally committed famines,
that is when starvation is intentionally inflicted upon a civilian population by, for example,
the bombing of food convoys (as in Ethiopia) or the imposition of high food quotas in order
that mass starvation ensues (as in the Ukraine), the mens rea requirement is unproblematic.
However, what of the systematic destruction of individuals’ ability to feed themselves that
results from flawed economic and agricultural policies that are recklessly maintained by the
state? Does this also fulfil the mens rea requirement? Cassese is extremely critical of the
absence of a specific recklessness provision as a culpable mens rea under the ICC Statute,156
however, on a close examination of the law of superior responsibility, which has its roots
deep in international law,157 recklessly induced famines are also prohibited under international
criminal law.
It is very well established that if a civilian or military superior fails to prevent or punish
their subordinates for the commission of criminal acts, that superior accrues criminal
responsibility, even if that superior did not directly participate in the act or did not share the
same intent as the subordinate who committed the offence.158 Nor is it even essential that the
non-military superior have actual knowledge,159 but that he ‘consciously disregarded
153
Prosecutor v Kristic IT-98-33-T, 2 September 2001, at para. 502.
Ibid, at para. 501.
155
Rutaganda, supra n. 80 at para. 84.
156
Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, (1999) 10
European Journal of International Law 144 at 154.
157
Lippman, ‘The Evolution and Scope of Command Responsibility’, (2000) 13 Leiden Journal of International
Law 139 at 140.
158
Bantekas, ‘The Contemporary Law of Superior Responsibility’, (1999) 93 The American Journal Of
International Law 573 at 575.
159
Tadic, supra n. 136, at para. 638.
154
information that clearly indicated that the subordinates were committing crimes’.160 The
standard is even lower for military superiors who simply ‘should have known’.161 There is a
general consensus of academic opinion that the correct mens rea for subordinates162 is that
outlined by the ICTY in the Kupreskic case where it was stated that ‘the requisite mens
rea…is comprised by the intent to commit the underlying offence, combined with the
knowledge of the broader context in which that offence occurs’.163 Therefore, if a government
official orders the imposition of a grain procurement quota, and the subordinate, while
carrying out the order to enforce the quota, sees that these acts are leading to widespread
starvation, he is ‘knowingly’ committing a crime against humanity. The superior then receives
reports that enforcements of his policies are leading to starvation, which he recklessly ignores
and continues enforcing the policies. As the behaviour of the subordinate goes unpunished
and nothing is done to prevent starvation, the criminal acts are imputed to the superior, who is
guilty of a crime against humanity and recklessly inducing a famine. Famine crimes as
defined above fall well within the law of crimes against humanity.
6. Conclusion
It has been demonstrated that existing international criminal law can be applied to cases of
enforced mass starvation. However, it is also clear that there are many limits and difficulties
with this. In respect to genocide a strict mens rea requirement, coupled with the protection of
a limited number of groups means that faminist behaviour will only be caught by this element
of international criminal law in limited circumstances. Of the three examples discussed in Part
2, perhaps only the Ethiopian famine would be caught by the prohibition on genocide. In
relation to war crimes and international humanitarian law, while rules have developed to
protect vulnerable elements of the civilian population during a siege, or the whole civilian
population during occupation there are two limitations. Firstly, there is much scope for the
warring parties to apply a restrictive interpretation. Secondly, and most obviously, this part of
international criminal law will only apply during an armed conflict. The previous discussion
suggests that the most accommodating area of existing international criminal law for
faminism is crimes against humanity, although again problems exist as to whether deprivation
of food can be classified as an ‘attack’ in itself.
In light of these considerations it is submitted that there does exist a benefit in codifying
the existing scattered law relating to faminism. Such codification by its nature would not fall
foul of the nullum crimen sine lege rule, but rather bring together all the disparate elements of
faminism found in international criminal law into one cohesive provision. The principal
advantage of this would be to make faminism more visible as behaviour worthy of attracting
criminal condemnation. Firstly, it would help to dispel the myth that famines are the sole
product of natural disaster. Schabas points out that, ‘the declaratory value of criminal law is
probably its most important contribution to the struggle against impunity. Society declares
that certain specific kinds of conduct are wrong…and it adds it to the collective memory.’164
This declaratory value cannot be underestimated, as so many governments find themselves at
present able to hide behind the popular perception of famines as ‘natural’ disasters thus
160
Article 28(b)(i), ICC Statute.
Article 28(a)(i), ICC Statute.
162
Keith, ‘The Mens Rea Requirement for Superior Responsibility as Developed by ICTY Jurisprudence’,
(2001) 14 Leiden Journal of International Law 617 at 633.
163
Prosecutor v Kupreskic, IT-95-16 14th January 2000 at para. 556.
164
Schabas, ‘Sentencing by International Tribunals: A Human Rights Approach’, (1997) 7 Duke Journal of
Comparative and International Law 461 at 516.
161
simultaneously avoiding condemnation and attracting sympathy. Secondly, it would mean that
in future those like Milosevic would be just as likely to face indictments relating to faminism
as other crimes under international criminal law. It is nonsensical and arbitrary to distinguish
crimes on the basis of their physically violent characteristics, rather than on their horrific
results (in this case, the number of those killed through enforced starvation).
There is no doubt of the effect that codification of international crimes has had on
responses to human rights catastrophes.165 For example, the Clinton administration performed
semantic gymnastics to avoid using the word ‘genocide’ because of the duty to prevent the
crime, and the same has occurred in relation to Sudan.166 Codification of famine crimes might
make such political manoeuvring more difficult by restricting the circumstances when
massive human rights violations can be considered as ‘acceptable’.
One factor that may dissuade states from establishing a specific crime of faminism is
that it might highlight the potential contradiction in using at one extreme a criminal sanction
for behaviour that leads to mass starvation of a specific population, while using little more
than high-minded rhetoric167 to redress the current unfair distribution of wealth in the world
which results in 10 million children dying each year of preventable diseases.168 Thus while
specifically criminalising faminist behaviour begins to recognise the inadequacy of how we
deal with massive and extreme (though non-violent) human rights violations, it merely deals
with a symptom of a very sick world.
165
Reisman, ‘Legal Responses To Genocide and Other Massive Violations of Human Rights’, (1996) 75 Law
and Contemporary Problems 75 at 75.
166
Russell, ‘UN Backtracks Over “Genocide” in Sudan’, Daily Telegraph, 2 February 2005.
167
For example, the Millennium Development Goals, which will not be achieved by their target.
168
UNDP Human Development Report 2005, available at:
http://hdr.undp.org/reports/global/2005/pdf/HDR05_complete.pdf.